IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.8561/2017 BETWEEN:
1. Syed Mehaboob Pasha S/o Late Syed Ali Aged about 29 years R/at No.112, Bellahalli Village I Main, 3rd Cross Near Jamiya Mosque Yelahanka Bengaluru-560 064.
2. Shrukkhan @ Sharuk S/o Hyder Khan Aged about 24 years R/at No.8, I Cross Opp. Mahmed Mosque Yelahanka Bengaluru-560 064. ... PETITIONERS (By Sri Ram Singh K, Adv.) AND:
State of Karnataka by Kothanur Police Station Bengaluru Represented by the Government Pleader High Court of Karnataka Bengaluru-560 001. ...RESPONDENT (By Sri Chetan Desai, HCGP) This Criminal Petition is filed under Section 439 of the Cr.P.C. praying to enlarge the petitioners on bail in Cr. No.100/2017 of Kothanur P.S., Bengaluru and in C.C.No.57136/2017, pending on the file of XI Addl. C.M.M., Bengaluru, for the offences P/U/Ss 143, 302, 201, 120(B) read with Section 149 of IPC.
This Criminal Petition coming on for Orders this day, the Court made the following:
ORDER This petition is filed by the petitioners/accused Nos.2 and 3 under Section 439 of Cr.P.C. seeking their release on bail for the offences punishable under Sections 143, 302 and 201, 120-B r/w Section 149 of IPC registered in respondent – police station Crime No.100/2017.
2. Heard the arguments of the learned counsel appearing for the petitioners/accused Nos.2 and 3 and also the learned High Court Government Pleader appearing for the respondent-State.
3. Learned counsel for the petitioners during the course of his arguments submitted that there are no eyewitnesses to the incident. The case of the prosecution rests on circumstantial evidence. He has submitted that the only circumstance according to the prosecution case is that the wife of Ayub Khan has stated that on 20.5.2017 all the accused Nos.1 to 6 came to the house and took the deceased along with them stating that they wanted to have discussion regarding real estate business. Except this material, there is no other material to show the involvement of the petitioners in committing the alleged offences. He has submitted that even the medical evidence and the opinion of the doctor regarding age of injuries shows that the present petitioners are not involved in committing the alleged offences. He has submitted that accused Nos.4 to 7 have been already granted bail. Now investigation is completed and charge sheet is filed.
Hence, by imposing reasonable conditions, petitioners may be enlarged on bail. In support of his submission, learned counsel for the petitioners also relied upon the decision of the Hon’ble Apex Court reported in 2005(1) Crimes 113(SC) in case of Jayendra Saraswathi Swamigal Vs. State of Tamil Nadu.
4. Per contra, learned High Court Government Pleader during the course of his arguments submitted that as per the prosecution material there is evidence regarding the last seen theory and the petitioners herein have given voluntary statements regarding the weapons kept in the car and have stated that if they are taken to the said place they will show the same. The statement of other witnesses also shows that accused Nos.2 and 5 were seen sitting along with the deceased in the land. Hence, he has submitted that looking to these materials collected during investigation, there is a prima facie case as against the petitioners-accused Nos.2 and 3 and hence, they are not entitled to be granted with bail.
5. I have perused the grounds urged in the bail petition, FIR, complaint and other materials placed on record, so also, the entire charge sheet material produced by the learned counsel for the petitioners.
6. Admittedly, even according to the prosecution case, there are no eyewitnesses to the incident and the case rests on circumstantial evidence. The circumstance is last seen theory. No doubt the wife of the deceased has stated that accused Nos.1 to 6 came to the house and took the deceased with them. But regarding the recovery is concerned it is only from accused No.1. Learned counsel for the petitioners drew the attention of the Court to the voluntary statement of accused No.1, which shows that at his instance the weapons are recovered by the police. Regarding the voluntary statements of the present petitioners learned counsel for the petitioners has submitted no recovery is effected at their instance.
7. I have also perused the post mortem report wherein the doctor has opined that the injuries are fresh in nature. The learned Sessions Judge has already granted bail to accused Nos.4 to 7 under the similar circumstances, The investigation of the case is completed and charge sheet is also filed. Petitioners/accused Nos.2 and 3 have contended in the petition that they are innocent and not committed the alleged offences and they have undertaken to abide by any reasonable conditions to be imposed by this Court. In view of all these materials, by imposing reasonable conditions, petitioners-accused Nos.2 and 3 can be admitted to regular bail.
8. Accordingly, petition is allowed.
Petitioners/accused Nos.2 and 3 are ordered to be released on bail for the offences punishable under Sections 143, 302 and 201, 120-B r/w Section 149 of IPC registered in respondent – police station Crime No.100/2017, subject to the following conditions:
i. Petitioners shall execute a personal bond for a sum of Rs.1,00,000/- each and furnish one surety for the likesum to the satisfaction of the concerned Court.
ii. Petitioners shall not tamper with any of the prosecution witnesses, directly or indirectly.
iii. Petitioners shall appear before the concerned Court regularly.
Sd/- JUDGE bkp